Urbanism for Capitalists | Capitalism for Urbanists

Urbanism for Capitalists | Capitalism for Urbanists

The term “Market Urbanism” refers to the synthesis of free-market economics and ethics, with an appreciation of the urban way of life and its benefits to society. Believe it or not, free-markets and urbanism go well together - take a read...

Please don’t misread the title. Herbert Hoover is not a man I consider a “Legend” – quite the contrary. I use the words “Urbanism Legend” in the context of the series of posts intended to dispel popular myths as they relate to urbanism.

Myths and fallacies about Herbert Hoover are abundant these days as the media discusses the Great Depression. Most of the myths incorrectly accuse Hoover of being a laissez-faire ideologue. However, Hoover is better described as a Progressive, and strongly believed in the power of government to shape society. (at the time Progressive elitists enjoyed a home within the Republican party and advocated vast social engineering programs such as alcohol prohibition) This was a significant departure from the relatively laissez-faire doctrines of previous Republican Presidents Coolidge and Harding. In fact, Hoover’s commitment to progressive programs prompted Franklin Roosevelt’s running mate, John Nance Garner, to accuse the Republican of “leading the country down the path of socialism” during the 1932 presidential campaign.

I urge everyone to learn more about Hoover’s progressive interventionist policies on your own. (I also recommend Rothbard’s America’s Great Depression) But, let’s look at Hoover’s anti-urbanist interventions, and legacy of sprawl.

Hoover, an engineer by trade, was a strong supporter of the Efficiency Movement, a significant campaign of the Progressive Era. He believed everything would be made better if experts identified the problems and fixed them, and that efficiency could be achieved through government-forced standardization of products. This helps explain Hoover’s zealous affection for planning, zoning, home ownership, and various objectives often shared by the (often conflicting) elitist-progressive strains seen in Robert Moses or Lewis Mumford (and later New Urbanists). (not to be confused with the Roosevelt New Deal Democrats who preferred intervention to promote decentralization and ruralization)

Hoover’s philosophy on planning and zoning could be exemplified by his praise of the Regional Plan of New York he gave in 1922:

The enormous losses in human happiness and in money which have resulted from lack of city plans which take into account the conditions of modern life need little proof. The lack of adequate open spaces of playgrounds and parks the congestion of streets the misery of tenement life and its repercussions upon each new generation are an untold charge against our American life. Our cities do not produce their full contribution to the sinews of American life and national character. The moral and social issues can only be solved by a new conception of city building. The vision of the region around New York as a well planned location of millions of happy homes and a better working center of millions of men and women grasps the imagination. A definite plan for its accomplishment may be only an ideal. But a people without ideals degenerates one with practical ideals is already upon the road to attain them.

(Later in 1922, progressive zoning triumphed over property rights in the US Supreme Court ruling, Pennsylvania Coal v Mahon, which decided, “property may be regulated to a certain extent, [but] if regulation goes too far it constitutes a taking.”)

We can trace the rapid growth of the adoption of zoning codes to Hoover’s tenure as Commerce Secretary during the 1920’s, when Commerce changed from a minor cabinet post to the most visible cabinet position. Before Hoover’s term as Commerce Secretary began in 1920, only forty-one municipalities throughout the United States had any sort of zoning laws. However, after eight short years this number had skyrocketed to 640. Popularity and legal legitimacy of planning and zoning grew rapidly through the 20’s with help from Hoover’s influence. By 1924, the US department of Commerce under Hoover wrote the Standard State Zoning Enabling Act, which, had it passed Congress, would have granted cities the power to, “regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population and the location and use of buildings, structures and land of trade, industry, residence or other purposes.” Instead, many states used the act as framework to implement comprehensive plans on their own. (Zoning as we know it today was Constitutionally validated by Euclid v. Ambler Realty two years later.) Then, in 1928, Hoover’s Commerce Department rewrote the Enabling Act in the form of the Standard City Planning Enabling Act to more precisely address and promote the use of master plans and comprehensive plans. The primary principles of the SCPEA were to:

1) organization and power of a planning commission to develop a master plan 2) plan for the physical development 3) master street plan 4) approval of public improvements 5) control private subdivision of land 6) develop a regional planning commission and regional plan.

[Hoover] was, in many respects, a progressive who hoped to reform society by reforming the operations of government. To some extent, in fact, the Commerce Department under Hoover could be said to be the first activist federal agency-presaging the New Deal vigor of the administration of President Franklin D. Roosevelt. Of particular importance to land-use planners is the fact that Hoover took an active role in shaping the statutes that govern American city planning.

Hoover was instrumental in starting the “Own Your Own Home” suburban advocacy movement, which lasted through the twenties. The government and business leaders of the “Own Your Own Home” movement described the single family home as a “symbol that could build consensus” and a “hallmark of the middle-class arrival in society.” To encourage home building, Hoover created the division of Building and Housing within the Commerce Department to coordinate the activity of builders, real estate developers, social workers, and homemakers as he worked closely with banks and savings and loans industry to promote long term mortgages (a new concept at the time – sound familiar?). Hoover’s promotion of home ownership as an investment of the 20’s remains a concept embedded in the American psyche, and may have helped contribute to our current financial mess.

The 1920’s also ushered in huge spending increases under the Federal Highway Act of 1921. At the time, highways were under the jurisdiction of the Department of Agriculture. Nonetheless, Hoover hosted two conferences on traffic while he was Secretary of Commerce. These conferences yielded a Uniform Vehicle Code and a Model Municipal Traffic Ordinance, which were heavily influenced by the automotive trade associations.

While popular legend paints Herbert Hoover as a laissez-faire ideologue, the evidence says otherwise, particularly when it comes to urban issues. Many of the problems of sprawl and auto-dependency derided by today’s progressives can be traced to policies of yesterdays’ progressive elitists, including Hoover. Maybe modern-day urbanists should look at Hoover’s legacy of land use policy and suburban advocacy, and reconsider their support of Hoover-like intervention and “stimulus” today that will burden future generations as Hoover’s legacy burdens living generations.

—–

For further reading, here’s a recent article from Citiwire (as permitted) I googled-upon when searching for more information on the “Standard Zoning Enabling Act” of 1926:

Take any great place that people love to visit. You know, those lively tourist haunts from Nantucket to San Francisco. Or those red hot neighborhoods from Seattle’s Capital Hill to Miami Beach’s Art Deco district. Or those healthy downtowns from Portland, Oregon to Chicago, Illinois to Charleston, South Carolina. What do they all have in common?

The mix of uses that gives them life are presently outlawed by zoning in virtually every city and town in all 50 states.

Crisis offers opportunity. With real estate in a freefall, there is an opportunity to lay the foundation for a more prosperous and sustainable American landscape.

If only there is the vision and political will.

Scrapping zoning codes is the single most significant change that can be made in every town and city in America. It would aid economic development, reduce greenhouse gas emissions, foster healthier lifestyles, reduce dependence on foreign oil, protect open space and wildlife habitats, and reduce wasteful government spending.

Zoning is a legacy of Herbert Hoover. As Commerce Secretary, he championed the “Standard Zoning Enabling Act” to address “the moral and social issues that can only be solved by a new conception of city building.” In 1926, the Supreme Court upheld zoning to protect health and safety by “excluding from residential areas the confusion and danger of fire, contagion and disorder which in greater or less degree attach to the location of store, shops and factories.” The quite sensible idea that people shouldn’t live next to steel mills was used to justify a system of “zones” to isolate uses that had lived in harmony for centuries.

Under zoning, new neighborhoods were segregated by income, and commerce was torn asunder from both customers and workers. Timeless ways of creating great places were ruthlessly outlawed. The sprawl spawned by zoning spread from sea to shining sea.

Almost everyone admits the environmental and social devastation caused by sprawl. Yet it remains the law. What’s been lacking is the tool for producing great places instead of bleak, auto-dependent landscapes. If “zoning” is the DNA of sprawl the coding that endlessly replicates the bleak landscape of autotopia, then what is the DNA of livable communities?

It is found in timeless ways of building, updated for the 21st Century, including the need to accommodate cars. It regulates incompatible uses without the absurdities of conventional zoning. It is calibrated for new buildings to contribute to their context and to the larger goal of making a great place. It does so primarily by regulating the form of buildings, since that is what determines the long-neglected public realm of streets and sidewalks. It does that by regulating setbacks, heights and the physical character of buildings. For example, a form-based code could protect the existing scale of a neighborhood from the “teardowns” of traditional homes for replacement by McMansions–or facilitate the evolution of an auto-oriented commercial strip to a mix of uses, including residential and/or office over retail.

Called “form-based codes” or “smart codes,” this alternative framework for shaping great places exists, and it’s quietly spreading.

Where it’s been tried, it’s been a success. Seaside, Florida, the poster town for “new urbanism,” was “coded” rather than zoned, and ended up on the cover of Time magazine. In 2003, Petaluma, California scrapped its zoning regulations and adopted a new code for 400 underdeveloped acres in their Downtown, producing more than a quarter billion dollars in new investment. Now cities as diverse as Miami, Buffalo, Tulsa and La Jolla are pursuing “form-based codes.”

Unlike zoning, “form-based coding” is not a “one-size fits all” solution. The rules for form in a dense urban center are distinctly different from those for a predominantly residential suburban neighborhood. In each case, the form and character of buildings are “calibrated” to achieve a cohesive and complimentary sense of place.

Still, widespread adoption waits upon the widespread recognition that the time for reform has come. The real estate meltdown provides that wake-up call. The model is broken. Financing generic products (class A office; suburban housing tract; grocery-anchored strip center; business park, etc.) through globally marketable securities has become radioactive. By the time supply and demand right themselves, the financial and economic unsustainability of sprawl will be laid bare.

Of course, one can never underestimate what historian Barbara Tuchman called “the march of folly.” Perhaps in the interest of “stimulus” to the moribund economy, we will be willing to spend trillions more to subsidize sprawl. But in the end, as economist Herbert Stein pointed out, “That which cannot go on forever, won’t.”

Before that day comes, we can save untold environmental, economic and social damage by the widespread adoption of coding that respects human scale, restores the proximity of complimentary uses, and repairs the damage done to the American landscape and our rich (but abandoned) tradition of creating fine neighborhoods, towns and cities.

Scrap zoning. Adopt coding. Legalize the art of making great places that people cherish, that produce economic value, and that leave a lighter environmental footprint on the land. Rick Cole’s e-mail address is RCole@ci.ventura.ca.us.

Citiwire.net columns are not copyrighted and may be reproduced in print or electronically; please show authorship, credit Citiwire.net and send an electronic copy of usage to webmaster@citiwire.net.

An Illinois appellate court has struck down the city of Chicago’s landmarks ordinance, saying it is unconstitutionally vague, putting in jeopardy the city’s protection of more than 250 buildings and 50 historic districts.

Judge James Fitzgerald Smith of the three person Appellate Court wrote, “We believe that the terms ‘value,’ ‘important,’ ‘significant,’ and ‘unique’ are vague, ambiguous, and overly broad”, and thus found the ordinance in violation of the state constitution.

The case involved two plaintiffs and two landmarked districts where attempts to downzone the areas failed before landmarking. However, once the case (including appeals) is over, Chicago’s entire landmarks ordinance would be completely invalidated.

Wow! I am surprised this isn’t making bigger waves in Chicago, and other cities. What should we expect to happen if appeals by The City should fail?

Per Tribune Architecture critic, Blair Kamin (who calls the ruling wrong-headed, but fielded some good comments):

The laws are based on a 1978 U.S. Supreme Court ruling which stopped the bankrupt Penn Central Railroad’s attempt to pile a 55-story office building atop New York City’s Beaux-Arts Grand Central Terminal. In that ruling, the court held that communities have the right to safeguard significant pieces of property, so long as they do not trample the rights of the properties’ owners.

The key word is “significant,” a word that appears frequently in Chicago’s seven criteria for landmark designation, as in the site of a significant historical event or a building that is the work of a significant architect.

It makes you wonder if there is a more robust solution to landmarks that does less to compromise the property rights of the land owners, and isn’t vulnerable to unforeseen court actions that find flaws in ordinances designed to give more power to the politicians. Perhaps, cities could achieve this through the tried and true use of contracts and easements.

I would propose some sort of easement contract with a city. If a city determines a property to have significant value to the community, the city should be willing to purchase a landmark easement from the property owner at or above market value. If the property owner does not wish to cooperate, the City should be forced to go through the eminent domain process to achieve its preservation easement.

Nonetheless, land owners should be compensated in some way for the intrusion upon their property rights based upon some peoples’ idea of ‘value,’ ‘important,’ ‘significant,’ and ‘unique’. In particular, I find the use of the word “value” peculiar. If there is value to the community, which the owner of the property does not recognize, the community should be willing to compensate the property owner for seizing that value at his expense. A property owner should not be burdened with the use restrictions and added expenses of maintaining a landmark for the benefit of the community without being compensated by the community, who wishes to impose its will upon that individual at no expense to itself.

I hope this incident makes cities re-evaluate their landmark ordinances. Particularly, I get an uneasy feeling about landmarking entire districts. Landmarking districts is a roundabout way to downzone an area, and has the unintentended consequences of banning diversity and density, sucking the potential for vibrancy from the neighborhood.

Brian Phillips at Live Oaks contacted me regarding the recent post by Stephen Smith on planning in Houston. Brian is a long time opponent of land use restrictions and defender of property rights in Houston. Brian has a different point of view on the subject, and has written a post on his blog, which I hope will spark some lively conversation.

Brian invited me to publish a copy of his post at Market Urbanism. Tomorrow, I hope my schedule gives me the opportunity to share some of my thoughts on the topic, because I sympathize with both authors’ points of view. In the meantime, I want to share Brian’s post right away to get readers reactions to it:

In a recent posting titled “Is Houston really Unplanned?” on Market Urbanism, Stephen Smith attempts to debunk alleged myths about Houston and planning. In the process, he actually engages in a much more widespread error–the failure to essentialize. (Here is a good explanation of essentializing.)

Smith cites several examples of land use regulations in Houston, such as minimum lot size mandates and regulations dictating parking requirements for new development. He argues that these regulations, along with the city’s enforcement of deed restrictions, refute claims that Houston has developed primarily on the basis of free market principles.

Smith’s position is common. Zoning advocates actually used similar arguments in the early 1990’s. Zoning advocates were wrong then, and Smith is now.

Admittedly, Houston is not devoid of land use regulations. But the nature, number, and scope of those regulations is significantly different from other cities. There is an essential difference between the regulations in Houston and those in other cities. The permitting process in Houston is relatively fast compared to other cities, and the expenses incurred in that process are also significantly lower in Houston. In other words, developers in Houston can respond much more quickly to changes in the market and do not incur exorbitant costs that must be passed on to consumers.

This is not a justification for the regulations that Houston does have. They are wrong and immoral, as are all land use regulations. But the fact is, Houston has far fewer and much less egregious restrictions on freedom than other cities.

Smith, and many others, attempt to paint a picture of Houston land use policies with a very wide, and indiscriminate, brush.

Boosters of Houston’s land use policy – those who believe that Houston’s land use patterns are the free market, revealed – never mention the restrictive minimum lot size and minimum parking requirements. They mention deed restrictions as free market innovations but fail to see how the city’s prosecutors turn private concerns into public budget drains.

If someone defends Houston’s relatively free land use policies, pundits such as Smith seem to assume that those advocates defend all of Houston’s land use policies. This is akin to believing that if someone likes one of Clint Eastwood’s movies, he likes all of Clint Eastwood’s movies (and everything else Clint Eastwood does). This is patently absurd.

As an example, Smith cites opposition to a proposed project at 1717 Bissonnet (the Ashby High Rise) as evidence that Houston does not have a laissez-faire policy towards land use. Smith implies that one particular violation of property rights is evidence that Houston is no different from other cities. He evades the fact that the vast majority of development projects proceed with little or no obstruction from the city.

I have defended the Ashby High Rise many times on this blog and at a panel discussion at Rice University. I have defended the project as a matter of principle–land use regulations are wrong and immoral. I have also addressed numerous other violations of property rights on this blog and elsewhere for nearly twenty years. To claim that “[b]oosters of Houston’s land use policy” have ignored the city’s violations of property rights is simply untrue. It may be true of some, but not of all. Smith chose to put all of us in the same boat with a broad generalization that flies in the face of the facts.

The fact is, Houston has fewer land use restrictions than other cities. Those that do exist are less restrictive (in general) than the restrictions in other cities. Those that do exist are less destructive than the restrictions in other cities. Again, the restrictions that do exist are indefensible.

Smith’s argument amounts to: Either Houston is completely laissez-faire or it is just like every other city. This ignores the degree of the transgression. This equates a pickpocket with a murderer. Both have violated the rights of another. Both have engaged in evil, but on a much different scale. To equate the two is to diminish the murderer’s evil. To equate Houston with cities that erect mountainous obstacles to development is to diminish Houston’s greatness.

But painting with a wide brush is not the only error that Smith makes. He questions the validity of contracts:

Another form of planning that Houston has, which is celebrated by the self-titled Antiplanner, is the institution of supposedly voluntary deed restrictions, or private land use covenants agreed upon by the owners of the property under restriction. I’m personally torn over the “libertarianness” of such schemes – are they truly voluntary? Can an individual owner of a property opt out of them once they’ve been signed? What’s the statute of limitations? One thing that makes me suspect that they perhaps aren’t as “free market” as they seem is that though the contracts are between individuals, Houston’s city code allows the city attorney to prosecute these lawsuits at no cost to the supposed victims – fellow property-owners.

Consider Smith’s own question– “Can an individual owner of a property opt out of them once they’ve been signed?” In other words, after a contract has been signed, can one party unilaterally breach that contract? This is nothing more than a desire to invalidate the very concept of contracts. If one party can unilaterally breach a contract, contracts–all contracts–are rendered meaningless.

A contract is an agreement to engage in certain actions over a period of time. If one party can unilaterally breach that contract–that is, declare the agreement void–the contract isn’t even worth the paper it is written on.

I agree that the city should not be enforcing deed restrictions–that is the responsibility of those who are party to the contract. But this error on the part of the city does not invalidate the fact that Houston remains freer than other cities. Smith fails to distinguish between minor transgressions and major.

A right is a sanction to act according to one’s own judgment without seeking permission from others. In this regard, Houston recognizes individual rights more consistently than other cities. This does not mean that Houston is perfect–it means that Houston recognizes individual rights more consistently than other cities. Where Houston does not recognize individual rights, it is wrong.

But Smith–and those who share his position–uses isolated facts to argue his case and then fails to identify the essence of those facts. He implies that all “[b]oosters of Houston’s land use policy” are the same. He implies that the voluntary and contractual planning that accompanies deed restrictions is no different from zoning or other coercive land use regulations. Both of these implications are false.

When one does not think in essentials, disparate facts can seem very similar. On the surface, deed restrictions and zoning might seem the same–both restrict land use. But the former is voluntary and consensual, while the latter is coercive and mandatory. There is an essential difference between the voluntary and the coercive. There is an essential difference between allowing individuals to act on their own judgment and forcing them to act contrary to their judgment. There is an essential difference between Houston and every other major city in the nation.

In Market Urbanism’s fourpartseries onrent control, I avoided the topic of the morality of rent control, as I intended to address the economic issues and leave the morality to others. Thankfully, J. Brian Phillips of the Ad Hoc Committee for Property Rights is an expert on the subject. In his blog, he linked to the recentRetail Rent Control post, and took the time to address the moral issue:

But the real issue isn’t political. The real issue is moral. A large part of the public sees nothing wrong with forcing others to provide for their wants and desires. And there is a steady stream of politicians all too eager to propose laws to grant them their wishes. They think that their wishes can somehow transform reality, that if they pass a law with the intention of creating affordable widgets, affordable widgets will result. They think that politicians are nothing more than genies who can grant their wish simply by writing a law. It doesn’t work that way. Reality is not malleable to one’s wishes.

He makes plenty of good points, so I recommend reading the whole post. He concludes:

Each individual has a moral right to live for his own happiness. He has a right to the fruits of his labor. He has a right to pursue his values without intervention from others, so long as he respects their mutual rights. Human beings are not sacrificial animals.

J. Brian Phillips wrote a great post at Houston Property Rights about liberal property rights in Houston, but what Brian had to say applies to every place. Here’s a snippet, but the entire post deserves a reading:

when developers and builders see a need for greater density, they respond accordingly. And they can respond relatively quickly because they do not need to spend years seeking the approval of those who do not own the property.

The market is a dynamic place. Each participant is motivated by his own self-interest, seeking to find the best use for his abilities and assets. When the market is unfettered, individuals can act as their judgment dictates, even when others think their ideas are folly. They need not convince the ignorant, the short-sighted, or bureaucrats. They need only convince those who choose to deal with them– their investors, their employees, and their customers. And each of these are motivated by their own self-interest.

Those who seek to impede the market, which means impede the voluntary choices of individuals, are motivated by something entirely different. For all of their rhetoric about protecting the public or promoting the common good, their real goal is control. Their real goal is control over the men and women who build and produce.

His writing concisely conveys many great points, and then he wraps it up with a rallying closing:

no individual has a right to demand that others provide for his sustenance or happiness. He cannot compel others to provide for him, just as others cannot compel him to provide for them. He cannot force others to sacrifice for him, nor can others force him to sacrifice for them. That is not anarchy, that is the rule of objective law. That is freedom.

I have always respected the rights of people to express themselves regarding my desire to make the building I own a home for me and my family. However, the latest expression of certain persons cannot go without comment.

Our neighborhood was recently papered with a flyer announcing another protest in front of 47 East 3rd Street. This flyer states it is the work and the expression of a group identifying themselves as “LES” and is offensive on numerous fronts: not only for its profanity (is this really what our neighborhood children should be taught is an acceptable way to express oneself?) but for attributing to me the statement “Let Them Eat Cake”. I never made this statement nor any other like it. I find the statement offensive; and further I find its attribution to me to be threatening. As the statement was invoked to justify the death and destruction that came with the French Revolution, I hope that persons attending the protest do not mistakenly use it to justify the destruction of property.

While I respect that people have the right to disagree with my position regarding wanting to make the building I own my home, and while I believe that these persons are allowed to exercise such disagreement through peaceful means, I am disturbed that the tenor of this protest is not only threatening in nature, but is also encouraging protestors to damage the very property they presumably seek to preserve.

“In Houston’s Old Sixth Ward, the city’s first fully protected district, property values have shot up 27 percent in the last year. When given the chance, historic preservation works.” This is great news! It means there should be absolutely no problem getting voluntary neighborhood buy-in for deed restrictions. If it boosts their values, who could be opposed? Why do we need the government to impose it, when it’s obviously in their own self-interest?

I argued a similar point in comments about the Carroll Gardens’ downzoning. In the case of Historic Preservation, neighbors could voluntarily form a corporation that owns facade easements on their properties. The corporation would protect the historic structures via property rights, as opposed to by mandate. Outsiders could always donate money to the corporation to buy easements on certain historic properties or make repairs. Did you know that facade easement donations by owners of historic buildings are considered tax-deductible contributions?

If a municipality really feels it needs to step in, it could purchase those easements at market price, but it would probably be unnecessary.